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In 2014 this belief in share ownership was embedded further into the JTC culture with the equity for all scheme, allowing all permanent members of staff the opportunity to invest in the future of their company. That helps explain why they are so dedicated and care so much about their client’s work.

The Guernsey Private Trust Company (PTC)

Published 25 Nov 2014

Background

This briefing note is intended to provide essential information on Guernsey PTCs and outline how a typical PTC structure works and is used in practice.

What is a Guernsey PTC?

A Guernsey PTC is a privately owned company that is incorporated specifically to act as trustee of a single trust or group of family trusts and is not permitted to offer trustee services to the public generally. PTC structures offer an opportunity for ultra-high-net-worth individuals to establish and manage, often with the assistance of their trusted advisors, their own trust company.

Elements of a typical structure

Purpose trust

A purpose trust is a particular type of trust which, unlike a conventional trust, can be formed to hold assets for a purpose without conferring a benefit on any person. In the case of a PTC, the express purpose of the trust would be to hold the shares in the PTC. The purpose trust is in itself an orphan vehicle which has no shares, so there are no ownership issues with the purpose trust.

Whilst the settlor can own the shares of the PTC, it is generally recommended that the settlor should not have any link with the PTCs' ownership, whether for tax, disclosure or some other reason. There may also be confidentiality issues and, if the trust fund consists of family assets, concerns that one person in the family is perceived to be in control of those assets. The preferred option is often for a purpose trust to own the shares in the PTC. The advantage of using a purpose trust is that there are no registration or disclosure requirements of such trusts under Guernsey law. Therefore the ownership of the PTC will be ‘confidential’. There is also the advantage that the shares in the PTC should be immune from an attack on the settlor.

Parties to the purpose trust include:

The settlor (a family member).

The trustee (normally a professional external trustee, licensed by the Guernsey Financial Services Commission (GFSC)).

An enforcer (required under Guernsey law as someone who can enforce the ‘purpose’ of the trust by holding the trustees to account).

A trust committee is an ‘option’ as a way of the settlor trying to retain an element of control. He may opt to have a trust committee comprising family members/advisors, and provide such committee with a statement of purpose setting out how he would like the committee to act with regard to, for example:

appointment and removal of the enforcer

appointment and removal of trustees

directing trustees to appoint /remove directors of a PTC

The PTC

The incorporation procedure for a PTC is the same as for any Guernsey company. An application is made to the Guernsey registry by an authorised corporate services provider. Currently the registry offers a standard incorporation in 24 hours or a rapid incorporation service within two hours the costs of which will be £100 and £350 respectively. On incorporation, one will need to file with the registry various application forms and a copy of the memorandum and articles of association signed by one initial subscriber. Unlike some other jurisdictions the objects do not need to be limited to acting as trustee of the family trusts.

Trusts and companies

The PTC becomes the trustee of the trusts, which in turn owns companies which often own underlying assets.

Administration

Board of directors

PTCs are run by the board of directors. Careful thought needs to be given to the choice of directors to ensure that the PTC, and ultimately the underlying trusts, are run properly whilst avoiding potential pitfalls regarding management and control.

As the residency of a trust normally depends on where the trust is administered and where the majority of the trustees are resident, it is important that the PTC is not inadvertently resident in another jurisdiction.

Having a majority of its directors resident in that jurisdiction may result in the PTC being 'controlled' and 'managed' in such jurisdiction and, as a consequence, the trust being exposed to potentially adverse tax consequences.

In addition to having the majority of the directors in the jurisdiction where the PTC has its registered office, the directors must be seen to be properly discharging their duties, understanding what they are doing, meeting to discuss and being aware of the company's business as opposed to acting as mere 'rubber stamps'.

The administration/management of the PTC and underlying trusts

This will normally be carried out by a licensed administrator in Guernsey. There will therefore need to be a management agreement in place between the PTC and the administrator setting out the terms of such agreement.

Licensing of PTC

In Guernsey, a PTC will only need to be licensed by the GFSC if it is receiving income, a fee, or other monetary consideration. Even though PTCs are often run on a non-profit basis, the PTC will have to charge fees, some of which will be valid trust expenses and others not. Where such fees are charged, it may be possible to apply to the GFSC for an exemption to regulation. Normally the GFSC will require various pieces of information including details of the name of the PTC, the directors, secretary and registered office, whether it will be charging a fee, confirmation that it is only acting as trustee of one or more trusts for one family and who will be administering the PTC (and a fee of currently £860).

What are the benefits of using PTCs?

Family control

Because PTCs offer ultra-high-net-worth individuals the possibility to compose the board of directors of the comprised of the settlor, family members and trusted friends/advisors who have a heightened knowledge of the family's business and financial affairs and are empathetic to the needs of the beneficiaries. It is possible for the board of the PTC to make decisions that are following the intention of the family, as their role as trustees of the underlying trusts.

As a result, family participation can:

Allow the board of the PTC can make quick and informed decisions concerning the trust assets due to the board having an intimate knowledge of the settlor's reasons for the investment.

Allow the PTC to deal with sensitive family issues more freely.

Increase the speed and flexibility of dealing with trust assets.

Enable the PTC to make confidential philanthropic payments. PTCs (and trust(s) for which the PTC acts as trustee) will usually be administered by a licensed administrator which will validly be represented on the board of the PTC. The benefits to the professional trustee are that it provides administration of underlying trusts as agent for the PTC and therefore is not liable as trustee. Careful thought needs to be given to the composition of the board of a PTC and also who is to have the power to appoint and remove its directors, for example, a trust committee of the purpose trust, consisting of family members and advisors.

Flexibility to change trustee

Having a PTC as trustee of family trusts there is little requirement to change the trustee, as it is comprised of the family members. If a change of licenced administrator is needed it is a quick and easy process.

Confidentiality

Ownership of the structure can remain confidential when structured with the use of a purpose trust.

This publication is intended to provide an overview of the subject matter and is not comprehensive in nature or to be construed as legal or tax advice. We recommend that clients seek professional advice on any particular matter.

Legal and Regulatory

The entities within JTC Group, carrying on the regulated business of JTC Group, are duly regulated as appropriate by the British Virgin Islands Financial Services Commission; the Cayman Islands Monetary Authority; the Guernsey Financial Services Commission; the Jersey Financial Services Commission; the Commission de Surveillance du Secteur Financier and the Ordre des Experts-Comptables in Luxembourg; the Malta Financial Services Authority; the Financial Services Commission in Mauritius; is licensed by De Nederlandsche Bank in the Netherlands; the South African Financial Services Board as an authorised financial services provider; is chartered and regulated to provide trust services by the South Dakota Division of Banking in South Dakota (USA); as a member of l’Association Romande des Intermédiaires Financiers in Switzerland; and is authorised and regulated by the Financial Conduct Authority in the UK.

L’Association Romande d’Intermédiaires Financiers (ARIF) is a self-regulated agency approved by the Swiss Financial Market Supervisory Authority (FINMA) for the supervision of financial intermediaries referred to in Article 2 para.3 of the Swiss Federal Act concerning the fight against money laundering and terrorist financing in the financial sector (LBA). ARIF is also recognised by FINMA as a professional organisation for the enactment of rules of conduct relating to the exercise of the profession of independent managers within the meaning of the Collective Investment Schemes Act (CISA).